ASSET PURCHASE AGREEMENT

Asset Purchase Agreement

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PDL BIOPHARMA, INC. | Otsuka Pharmaceutical Co, Ltd | PDL BioPharma, Inc

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Title: ASSET PURCHASE AGREEMENT
Governing Law: California Date: 12/17/2007
Industry: Biotechnology and Drugs Law Firm: Heller Ehrman;DLA Piper Sector: Healthcare

ASSET PURCHASE AGREEMENT, Parties: pdl biopharma inc. , otsuka pharmaceutical co ltd , pdl biopharma inc

Exhibit 10.1

EXECUTION VERSION

ASSET PURCHASE AGREEMENT

BY AND BETWEEN

PDL BIOPHARMA, INC.,

a Delaware corporation

and

OTSUKA PHARMACEUTICAL CO., LTD.,

a Japanese corporation

Dated as of December 14, 2007

TABLE OF CONTENTS


			Page
ARTICLE 1	DEFINITIONS		1

	1.1	“Accounts Payable”	1

	1.2	“Accounts Receivable”	1

	1.3	“Affiliate”	1

	1.4	“API”	1

	1.5	“Assets”	1

	1.6	“Assumed Contracts”	1

	1.7	“Books and Records”	1

	1.8	“Business”	2

	1.9	“Buyer Indemnitee(s)”	2

	1.10	“Claim”	2

	1.11	“Clinical Data”	2

	1.12	“Closing”	2

	1.13	“Closing Date”	2

	1.14	“Closing Date Inventory Value Schedule”	2

	1.15	“Confidential Information”	2

	1.16	“Confidentiality Agreement”	2

	1.17	“Customer Orders”	2

	1.18	“Drug Product”	2

	1.19	“Effective Date”	2

	1.20	“Excluded Assets”	2

	1.21	“Expiration Date”	2

	1.22	“FDA”	2

	1.23	“FD&C Act”	2

	1.24	“Governmental Entity”	2

	1.25	“HSR”	2

	1.26	“IND”	3

	1.27	“Knowledge”	3

	1.28	“Liabilities”	3

	1.29	“Licensed IP Rights”	3

	1.30	“Material Adverse Change” and “Material Adverse Effect”	3

TABLE OF CONTENTS

(continued)


			Page
	1.31	“Marketing and Promotional Documents”	3

	1.32	“NDA”	3

	1.33	“Non Product-Specific Manufacturing Information”	3

	1.34	“Non-U.S. Marketing Approvals”	3

	1.35	“Notice of Objection”	3

	1.36	“Packaged Product”	4

	1.37	“Packaging Inventory”	4

	1.38	“Patents”	4

	1.39	“Product”	4

	1.40	“Product Inventory”	4

	1.41	“Product-Specific Manufacturing Information”	4

	1.42	“Product Specifications”	4

	1.43	“Purchase Price”	4

	1.44	“Raw Materials and WIP”	4

	1.45	“Registrations”	4

	1.46	“Research and Development Materials”	4

	1.47	“SEC”	4

	1.48	“Seller Indemnitees”	4

	1.49	“Shared Contracts”	4

	1.50	“Tangible Assets	4

	1.51	“Tax” and “Taxes”	4

	1.52	“Territory”	5

	1.53	“Third Party Accounting Firm”	5

	1.54	“Trademarks”	5

	1.55	“Trademark Registrations”	5

	1.56	“Transition Services Agreement”	5

	1.57	“Worldwide Safety Reports”	5

ARTICLE 2	TRANSFER OF ASSETS; LICENSE AND SUBLICENSE		5

	2.1	Purchase and Sale of Assets	5

		(a) Patents	5

		(b) Licensed IP and Know-How	5

		(c) Trademark Registrations	6

TABLE OF CONTENTS

(continued)


			Page
		(d) Copyrights	6

		(e) Registrations	6

		(f) Product-Specific Manufacturing Information	6

		(g) Non Product-Specific Manufacturing Information	6

		(h) Research and Development Materials	7

		(i) Marketing and Promotional Documents	7

		(j) Worldwide Safety Reports	7

		(k) Clinical Data	7

		(l) Tangible Assets	7

		(m) Domain Names	7

		(n) Product Inventory	7

		(o) Packaging Inventory	7

		(p) Raw Materials and WIP	8

		(q) Assumed Contracts	8

		(r) Books and Records	8

		(s) Customer Orders	8

	2.2	Excluded Assets	8

	2.3	Assumed Liabilities	8

	2.4	Excluded Liabilities	9

	2.5	Risk of Loss	9

	2.6	Taxes	10

ARTICLE 3	CONSIDERATION		10

	3.1	Purchase Price	10

	3.2	Method of Payment	10

	3.3	Allocation of Purchase Price	10

	3.4	Product Inventory, Raw Materials and WIP Adjustment	10

ARTICLE 4	CLOSING		11

	4.1	Closing	11

	4.2	Actions at Closing	11

		(a) Deliveries by Seller at Closing	11

		(b) Deliveries by Buyer at Closing	13

iii

TABLE OF CONTENTS

(continued)


			Page
ARTICLE 5	EMPLOYMENT MATTERS		13

	5.1	Employees	13

ARTICLE 6	REPRESENTATIONS AND WARRANTIES OF SELLER		14

	6.1	Organization and Authority	14

	6.2	No Violation or Conflict	15

	6.3	Consents and Approvals	15

	6.4	Title to Assets	15

	6.5	Patents	15

	6.6	Trademarks	16

	6.7	Registrations	16

	6.8	Assumed Contracts	16

	6.9	Manufacturing	16

	6.10	Registrations; Regulatory Matters	17

	6.11	Regulatory Status of Product	17

	6.12	Product Net Sales	17

	6.13	Violations of Law	17

	6.14	Litigation	17

	6.15	Taxes	18

	6.16	Customers and Suppliers	18

	6.17	Inventory	18

	6.18	Employees	18

	6.19	Insurance	19

	6.20	Packaging Inventory	19

	6.21	Brokers and Finders	19

	6.22	Sufficiency	19

	6.23	No Implied Warranty	19

ARTICLE 7	REPRESENTATIONS AND WARRANTIES OF BUYER		20

	7.1	Organization and Authority	20

	7.2	No Conflict or Violation	20

	7.3	Consents and Approvals	20

	7.4	Cash Resources	21

	7.5	Litigation	21

TABLE OF CONTENTS

(continued)


			Page
	7.6	Brokers and Finders	21

	7.7	Buyer Due Diligence	21

ARTICLE 8	PRE-CLOSING COVENANTS OF SELLER		21

	8.1	Governmental Filings	21

	8.2	Conduct of Business	21

	8.3	Obtaining Necessary Consents	21

	8.4	Shared Contracts	22

	8.5	No Solicitation	22

	8.6	Access	22

ARTICLE 9	CONDITIONS TO CLOSING		23

	9.1	Conditions to Obligations of Buyer	23

	9.2	Conditions to Obligations of Seller	23

ARTICLE 10	POST - CLOSING COVENANTS		23

	10.1	Further Assurances	23

	10.2	Transfer of Registrations; Interim Responsibility	23

	10.3	Communication With Agencies	24

	10.4	Federal Supply Schedule	24

	10.5	Adverse Experience Reporting	24

	10.6	Promotion, Marketing and Labeling	25

	10.7	Medical Inquiries	26

	10.8	Non-Use of Trademarks	26

	10.9	Documents	26

	10.10	Governmental Inspections	26

	10.11	Intellectual Property Maintenance	27

	10.12	Insurance	27

	10.13	Payments from Third Parties	27

	10.14	Distribution of Products	27

	10.15	Product Returns, Chargebacks and Rebates	28

	10.16	Additional Assets	28

	10.17	Bulk Transfer Laws	28

ARTICLE 11	CONFIDENTIALITY		28

	11.1	Confidentiality	28

TABLE OF CONTENTS

(continued)


	11.2	Publicity	29

ARTICLE 12	TERM AND TERMINATION		29

ARTICLE 13	INDEMNIFICATION		30

	13.1	Indemnification by Buyer	30

	13.2	Indemnification by Seller	30

	13.3	Claims	31

	13.4	Limitation; Exclusivity	31

ARTICLE 14	MISCELLANEOUS		31

	14.1	Non-Survival of Representations and Warranties	31

	14.2	No Third Party Beneficiaries	31

	14.3	Force Majeure	31

	14.4	Governing Law; Jurisdiction; Dispute Resolution and Arbitration	32

	14.5	Severability	32

	14.6	Entire Agreement	33

	14.7	Amendment	33

	14.8	Notices	33

	14.9	Assignment	34

	14.10	No Agency	34

	14.11	Construction	34

	14.12	Payment of Expenses	34

	14.13	Counterparts	34

LIST OF EXHIBITS, ATTACHMENT AND SCHEDULES


EXHIBITS

Exhibit A		General Assignment and Bill of Sale
Exhibit B		Assignment and Assumption Agreement
Exhibit C		Domain Name Assignment Agreement
Exhibit D		Patent Assignment Agreement
Exhibit E		Trademark Assignment Agreement
Exhibit F		Transition Services Agreement
Exhibit G		Form of Third Party Consent to Assignment of Assumed Contracts
Exhibit H		Form of Third Party Notification Letter

ATTACHMENTS

Attachment 1.42(a)		Product Specifications for bulk API
Attachment 1.42(b)		Product Specification for Drug Product
Attachment 1.44		List of Raw Materials and WIP
Attachment 2.1(a)		List of Patents
Attachment 2.1(b)		List of Licensed IP Rights
Attachment 2.1(c)		List of Trademark Registrations
Attachment 2.1(e)		List of Registrations
Attachment 2.1(l)		List of Tangible Assets
Attachment 2.1(m)		List of Domain Names
Attachment 2.1(q)(1)		List of Shared Contracts
Attachment 2.1(q)(2)		List of Assumed Contracts
Attachment 4.2(a)		List of Third Party Consents
Attachment 5.1(a)		Business Employees

DISCLOSURE SCHEDULES

Schedule 6.3		Consents and Approvals
Schedule 6.4		Title to Assets
Schedule 6.5		Patents
Schedule 6.6		Trademarks
Schedule 6.7		Registrations
Schedule 6.8(a)		Default under Assumed Contracts and Shared Contracts
Schedule 6.8(b)		Third Party Consents
Schedule 6.9		Manufacturing
Schedule 6.10		Registrations; Regulatory Matters
Schedule 6.11		Regulatory Status of Product
Schedule 6.12		Product Net Sales
Schedule 6.14		Litigation
Schedule 6.16(a)		Customers and Suppliers
Schedule 6.16(b)		Notice from Customers and Suppliers
Schedule 6.17		Inventory


Schedule 6.18		Employees
Schedule 6.19		Insurance
Schedule 6.20		Packaging Inventory
Schedule 6.21		Brokers and Finders (Seller)

SCHEDULES

Schedule 7.6		Brokers and Finders (Buyer)
Schedule 8.4		Shared Contracts

ASSET PURCHASE AGREEMENT

This Asset Purchase Agreement (this “ Agreement ”) is entered into as of December 14, 2007 (the “ Effective Date ”) between PDL BioPharma, Inc., a Delaware corporation (“ Seller ”) and Otsuka Pharmaceutical Co., Ltd., a Japanese corporation (“ Buyer ”).

RECITALS

A. Seller owns certain rights and assets related to the IV Busulfex ^® (busulfan) product.

B. Seller desires to sell, and Buyer wishes to acquire, all right, title and interest in and to the Assets (as defined below) used in the Business (as defined below), upon the terms and conditions set forth in this Agreement, in exchange for consideration consisting of cash and the assumption of certain Liabilities in connection with the Business, and other terms and conditions as set forth in this Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Agreement, and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties to this Agreement agree as follows:

ARTICLE 1

DEFINITIONS

1.1 “ Accounts Payable ” shall mean all of Seller’s trade accounts payable, and all notes payable by Seller created or arising in respect of the Product.

1.2 “ Accounts Receivable ” shall mean all of Seller’s trade accounts receivable, and all notes receivable or evidences of indebtedness payable to Seller created or arising in respect of the sale of the Product.

1.3 “ Affiliate ” with respect to any party means any entity that is directly or indirectly controlling, controlled by or under common control with such party.

1.4 “ API ” shall mean the active pharmaceutical ingredient busulfan.

1.5 “ Assets ” shall have the meaning given in Article 2.

1.6 “ Assumed Contracts ” shall have the meaning given in Section 2.1(q) and shall include the agreements, purchase orders and change orders listed in Attachment 2.1(q)(2) .

1.7 “ Books and Records ” shall mean all pricing lists, material customer correspondence and related material books and records used solely and specifically with respect to the Business in the Territory by Seller or any of Seller’s Affiliates.

1.8 “ Business ” shall mean the business as conducted at the Closing Date by Seller of using, making or having made, selling, marketing and supporting the Product.

1.9 “ Buyer Indemnitee(s) ” shall have the meaning given in Section 13.2.

1.10 “ Claim ” shall have the meaning given in Section 13.3.

1.11 “ Clinical Data ” shall have the meaning given in Section 2.1(k).

1.12 “ Closing ” shall have the meaning given in Section 4.1.

1.13 “ Closing Date ” shall have the meaning given in Section 4.1.

1.14 “ Closing Date Inventory Value Schedule ” shall have the meaning given in Section 3.1.

1.15 “ Confidential Information ” shall have the meaning ascribed to it in the Confidentiality Agreement.

1.16 “ Confidentiality Agreement ” shall mean that certain Mutual Confidentiality Agreement between Buyer and Seller dated September 6, 2007.

1.17 “ Customer Orders ” mean orders for Packaged Product from customers of Seller or any of Seller’s Affiliates in the Territory.

1.18 “ Drug Product ” shall mean labeled or unlabelled vials containing API.

1.19 “ Effective Date ” shall mean the date first set forth in the opening paragraph of this Agreement.

1.20 “ Excluded Assets ” shall have the meaning given in Section 2.2.

1.21 “ Expiration Date ” shall have the meaning given in Section 11.1.

1.22 “ FDA ” shall mean the United States Food and Drug Administration, or any successor agency or entity thereto that may be established hereafter which has the responsibilities with respect to pharmaceutical products such as the Product.

1.23 “ FD&C Act ” shall mean the Federal Food, Drug and Cosmetic Act, 21 USC § 321 et seq .

1.24 “ Governmental Entity ” shall mean any court, tribunal, arbitrator, authority, agency, commission, regulatory, official or other instrumentality of the government of the United States or of any foreign country, any state or any political subdivision of any such government (whether state, provincial, county, city, municipal or otherwise).

1.25 “ HSR ” shall mean the United States Hart-Scott-Rodino Antitrust Improvements Act of l976, as amended, and related rules.

1.26 “ IND ” shall mean investigational new drug application number IND 46,232, initially filed September 16, 1994.

1.27 “ Knowledge ” shall mean, whenever any representation or warranty is made by Seller or Buyer “to the Knowledge” of the Seller or Buyer, (i) the actual knowledge of the officers of the Seller or Buyer, respectively, and (ii) the knowledge that any such person referenced in clause (i) hereof, as a prudent business person, would have obtained in the usual course of the performance of his or her professional responsibilities to such party.

1.28 “ Liabilities ” shall mean liabilities of any kind or nature, primary or secondary, direct or indirect, absolute or contingent, known or unknown, liquidated or unliquidated, including but not limited to any liabilities for claims of product liability, personal injury or death, liability in tort or contract (including unripened liabilities due to past actions or sales), indebtedness, and any FDA or other Governmental Entity action or notification, and all costs and expenses (including reasonable attorneys’ fees), incurred in connection with the defense of any such claims.

1.29 “ Licensed IP Rights ” shall have the meaning given in Section 2.1(b).

1.30 “ Material Adverse Change ” and “ Material Adverse Effect ” shall mean any event or situation that has a material adverse change or effect, respectively, on the operations, assets, Liabilities, results of operations, cash flows or financial condition, or relations with material customers or material suppliers, of the Business, taken as a whole, other than any such change or effect resulting from or arising in connection with (i) the announcement, performance or pendency of this Agreement or the transactions contemplated hereby, (ii) changes or conditions affecting the pharmaceutical industry, generally, (iii) changes in economic, regulatory or political conditions generally, (iv) changes in financial markets, including prevailing interest rates or market conditions; (v) developments or announcements, including product approvals and clinical trial results with respect to competitive or potentially competitive therapies or products, (vi) resignations or departures of employees engaged in the Business, (vii) fluctuations in foreign currency exchange rates, (viii) any failure to meet internal or published projections, estimates or forecasts of revenues, earnings, development timelines or other measures of financial or operating performance for any period, (ix) changes in applicable laws or interpretations thereof by Governmental Entities or (x) changes or effects that are the result of actions taken by Buyer that have an effect on the Business.

1.31 “ Marketing and Promotional Documents ” shall have the meaning given in Section 2.1(i).

1.32 “ NDA ” shall mean new drug application number NDA 20-954, initially approved February 4, 1999.

1.33 “ Non Product-Specific Manufacturing Information ” shall have the meaning given in Section 2.1(g).

1.34 “ Non-U.S. Marketing Approvals ” shall have the meaning given in Section 6.10.

1.35 “ Notice of Objection ” shall have the meaning given in Section 3.4.

1.36 “ Packaged Product ” shall mean Product in the Product Inventory purchased by Buyer hereunder that is packaged and labeled for sale to the end user.

1.37 “ Packaging Inventory ” shall have the meaning given in Section 2.1(o).

1.38 “ Patents ” shall have the meaning given in Section 2.1(a).

1.39 “ Product ” shall mean each presentation of any pharmaceutical preparation (including formulation changes and production intermediates) containing the API, whether registered, marketed or in development by Seller, as of the Closing Date, including Product marketed under the name IV Busulfex ^® (busulfan).

1.40 “ Product Inventory ” shall mean all of the inventory owned by Seller of bulk API, Packaged Product and Drug Product, in existence as of the Closing each of which shall have a remaining shelf-life of at least six (6) months as of the Closing Date.

1.41 “ Product-Specific Manufacturing Information ” shall have the meaning given in Section 2.1(f).

1.42 “ Product Specifications ” shall mean the specifications for bulk API, and for Drug Product, as set forth in Attachments 1.42 (a) and (b) , respectively.

1.43 “ Purchase Price ” shall have the meaning given in Section 3.1.

1.44 “ Raw Materials and WIP ” shall mean all of the raw materials and work in progress owned by Seller for use in the manufacture of the Product, in existence as of the Closing, as identified in Attachment 1.44 , each of which shall have a remaining shelf-life of at least six (6) months as of the Closing Date.

1.45 “ Registrations ” shall have the meaning given in Section 2.1(e).

1.46 “ Research and Development Materials ” shall have the meaning given in Section 2.1(h).

1.47 “ SEC ” shall mean the United States Securities and Exchange Commission.

1.48 “ Seller Indemnitees ” shall have the meaning given in Section 13.1.

1.49 “ Shared Contracts ” shall mean contracts and agreements to which Seller is a party which relate to the Product or the Business, but also relate to other products and businesses of Seller.

1.50 “ Tangible Assets ” shall have the meaning given in Section 2.1(l).

1.51 “ Tax ” and “ Taxes ” shall mean all present or future taxes, charges, fees, levies, duties or other assessments including, without limitation, income, excise, property, value added, real estate, sales, payroll, transfer, social security and franchise taxes imposed by any federal, state, county, or local government, or a subdivision or agency thereof. Such term shall include any interest, penalties, or additions payable in connection with such taxes, charges, fees, levies, duties, or other assessments.

1.52 “ Territory ” shall mean all the countries in the world.

1.53 “ Third Party Accounting Firm ” shall have the meaning given in Section 3.4.

1.54 “ Trademarks ” shall mean all trademarks, service marks, trade names, names, slogans, taglines, logos, design marks, trade dress, product designs, and product packaging, including all applications for and registrations of the foregoing, and including those at common law that are related to the Product.

1.55 “ Trademark Registrations ” shall have the meaning given in Section 2.1(c).

1.56 “ Transition Services Agreement ” shall mean the agreement entered into by Buyer and Seller relating to the transition of the Business, whereby Seller shall provide certain regulatory, supply chain management, intellectual property, product development and other services to Buyer, to the extent and for the periods of time and at the costs as specified therein.

1.57 “ Worldwide Safety Reports ” shall have the meaning given in Section 2.1(j).

ARTICLE 2

TRANSFER OF ASSETS; LICENSE AND SUBLICENSE

2.1 Purchase and Sale of Assets . Subject to the terms and conditions of this Agreement, Seller shall sell, transfer, assign, convey, deliver, license or sublicense, as specified below, to Buyer; or shall cause to be sold, transferred, assigned, conveyed, delivered, licensed or sublicensed, as specified below, to Buyer, and Buyer shall acquire all of Seller’s right, title and interest in and to the property and assets of Seller identified in this Section 2.1 (collectively, the “ Assets ”).

(a) Patents . Upon Closing, Seller shall sell, transfer, assign, convey and deliver; or shall cause to be sold, transferred, assigned, conveyed and delivered to Buyer, all of Seller’s rights, title and interest in and to the patent filings listed in Attachment 2.1(a) (the “ Patents ”), including any patents of addition, re-examinations, reissues, extensions, granted supplementary protection certifications, substitutions, confirmations, registrations, revalidations, revisions, additions and the like, of or to said Patents and any and all divisionals, continuations and continuations-in-part, and any patents issuing therefrom. Seller hereby retains a royalty-free right and license, including the right to sublicense, under the Patents, solely to the extent necessary for, and solely for the purposes of, performing Seller’s obligations under this Agreement and the Transition Services Agreement and only until the completion of Seller’s obligations hereunder and thereunder.

(b) Licensed IP and Know-How . Upon Closing, and Buyer’s assumption of the Assumed Contracts, Seller shall transfer, assign, convey and deliver; or shall cause to be sold, transferred, assigned, conveyed and delivered to Buyer, all of Seller’s rights under the patent rights listed in Attachment 2.1(b) (the “ Licensed IP Rights ”), and all of Seller’s rights under all patents, know how and other intellectual property rights contained in the license

agreements included as part of the Assumed Contracts, subject to any restrictions and obligations in such license agreements. Seller hereby retains a royalty-free right and license under the Licensed IP Rights for use in the Business, solely to the extent necessary for, and solely for the purposes of, performing Seller’s obligations under this Agreement and the Transition Services Agreement, and only until the completion of Seller’s obligations hereunder and thereunder.

(c) Trademark Registrations . Upon Closing, Seller shall sell, transfer, assign, convey and deliver; or shall cause to be sold, transferred, assigned, conveyed and delivered to Buyer, all of Seller’s rights, title and interest in and to the Trademarks, trademark registrations and applications which are identified in Attachment 2.1(c) , together with (i) all common law rights to the Trademarks, (ii) the goodwill of the Business symbolized by the Trademarks, (iii) all causes of actions, claims and demands or other rights for, or arising from any infringement, dilution, unfair competition, or other violation, including past infringement, dilution, unfair competition, or other violation, of the Trademarks, and (iii) all rights corresponding thereto throughout the world (the “ Trademark Registrations ”). No rights under any other names are transferred to Buyer hereunder.

(d) Copyrights . Upon Closing, Seller shall sell, transfer, assign, convey and deliver; or shall cause to be sold, transferred, assigned, conveyed and delivered to Buyer, all of Seller’s rights, title and interest in and to the copyrights, including all related registrations, applications and common law rights, in any labels, product marketing materials or other copyrighted works related to the Product and used in the Business.

(e) Registrations . Upon Closing, Seller shall sell, transfer, assign, convey and deliver; or shall cause to be sold, transferred, assigned, conveyed and delivered to Buyer, solely to the extent saleable, transferable, assignable, conveyable or deliverable under applicable law, all of Seller’s rights, title and interest in and to the regulatory files and approvals, registrations and governmental authorizations, each NDA, each IND, compliance notices, licenses and permits, and any applications to the FDA or the comparable foreign law or bodies in effect or pending at the Closing Date, and all materials and information relating to the FDA and other Governmental Entity approvals for the Product in the Business held by Seller, the same being identified in Attachment 2.1(e) , and all information contained therein (the “ Registrations ”).

(f) Product-Specific Manufacturing Information . Upon Closing, Seller shall sell, transfer, assign, convey and deliver; or shall cause to be sold, transferred, assigned, conveyed and delivered to Buyer all of Seller’s rights, title and interest in and to all of Seller’s manufacturing information (the “ Product-Specific Manufacturing Information ”) used solely and exclusively in the Business. Seller shall retain a non-exclusive license to use Product-Specific Manufacturing Information, solely for purposes of fulfilling its obligations under this Agreement and the Transition Services Agreement, and only until completion of Seller’s obligations hereunder and thereunder.

(g) Non Product-Specific Manufacturing Information . Upon Closing, Seller shall grant, or shall cause to be granted to Buyer, a perpetual, paid up, irrevocable, royalty-free, non-exclusive license, with the right to sublicense, to use, only in the Business, any manufacturing information that is used by Seller both in the Business and also in other business activities of Seller (the “ Non-Product Specific Manufacturing Information ”). Seller shall retain a non-exclusive license to use Non-Product-Specific Manufacturing Information in other business activities of Seller.

(h) Research and Development Materials . Upon Closing, Seller shall sell or shall cause to be sold, and shall promptly deliver or cause to be delivered to Buyer, copies of research and development reports and disclosure memoranda owned or controlled by Seller or its Affiliates and any of their respective agents, solely to the extent relating exclusively to the Business (the “ Research and Development Materials ”).

(i) Marketing and Promotional Documents . Upon Closing, Seller shall sell, or shall cause to be sold, and shall thereafter promptly deliver or cause to be delivered to Buyer, hard copies and an electronic copy existing and in use as of the Closing Date of the marketing and promotional documents owned by Seller or its Affiliates, such as customer lists, marketing and promotional plans, documents and materials, field force training manuals and materials, and the like, solely to the extent relating exclusively to the Business (the “ Marketing and Promotional Documents ”). Buyer’s use of the Marketing and Promotional Documents shall be subject to Section 10.6.

(j) Worldwide Safety Reports . Upon Closing, Seller shall sell, transfer, assign, convey and deliver or shall cause to be sold, transferred, assigned, conveyed and delivered to Buyer, a copy of all worldwide safety reports in the possession of Seller or its Affiliates with respect to the API or the Product in existence as of the Closing (the “ Worldwide Safety Reports ”).

(k) Clinical Data . Upon Closing, Seller shall sell, transfer, assign, convey and deliver or shall cause to be sold, transferred, assigned, conveyed and delivered to Buyer, a copy of all clinical data contained in Seller’s databases referring to the API or the Product (the “ Clinical Data ”).

(l) Tangible Assets . Upon Closing, Seller shall sell, transfer, assign, convey and deliver or shall cause to be sold, transferred, assigned, conveyed and delivered to Buyer, certain tangible assets, as listed in Attachment 2.1(l) (the “ Tangible Assets ”).

(m) Domain Names . Upon Closing, Seller shall sell, transfer, assign, convey and deliver or shall cause to be sold, transferred, assigned, conveyed and delivered to Buyer, all of Seller’s rights, title and interest in and to the domain names listed in Attachment 2.1(m) (collectively, the “ Domain Names ”).

(n) Product Inventory . Upon Closing, Seller shall sell, transfer, assign, convey and deliver or shall cause to be sold, transferred, assigned, conveyed and delivered to Buyer, the Product Inventory.

(o) Packaging Inventory . Upon Closing, Seller shall sell, transfer, assign, convey and deliver or shall cause to be sold, transferred, assigned, conveyed and delivered to Buyer, all packaging material for the Product, including all package labels and product inserts used in connection with the Product owned or controlled by Seller as of the Closing (the “ Packaging Inventory ”).

(p) Raw Materials and WIP . Upon Closing, Seller shall sell, transfer, assign, convey and deliver or shall cause to be sold, transferred, assigned, conveyed and delivered to Buyer, the Raw Materials and WIP.

(q) Assumed Contracts . Upon Closing, except as otherwise provided in Section 8.4 with respect to the Shared Contracts listed in Attachment 2.1(q)(1) , Seller shall sell, transfer, assign, convey and deliver or shall cause to be sold, transferred, assigned, conveyed and delivered to Buyer, all rights and benefits of Seller in existence as of the Closing Date arising after the Closing Date under the contracts listed in Attachment 2.1(q)(2) (the “ Assumed Contracts ”), including, any intellectual property rights therein.

(r) Books and Records . Upon Closing, Seller shall deliver to Buyer, copies of all Books and Records.

(s) Customer Orders . Upon Closing, Seller shall sell, transfer, assign, convey and deliver or shall cause to be sold, transferred, assigned, conveyed and delivered to Buyer, all unfilled Customer Orders as of the Closing Date (i.e. Customer Orders to the extent that (i) the Packaged Products at issue have not been shipped to the applicable customer as of the Closing Date and (ii) Buyer (rather than Seller or any of its Affiliates) would be paid by the applicable customer after shipment by Buyer following the Closing Date), a list of which shall be provided to Buyer within ten (10) business days after the Closing Date.

2.2 Excluded Assets . Buyer hereby acknowledges that Seller is not transferring hereunder any assets, rights or interests of Seller (collectively, the “ Excluded Assets ”) not specifically set forth in Section 2.1, including, without limitation:

(a) any contracts or agreements with any third party that are not Assumed Contracts;

(b) any assets or rights used solely in the research, development, manufacture, control, packaging or release, marketing or sale of products other than the Product;

(c) any assets or rights, including without limitation, technical information and intellectual property, that are not used exclusively in the Business and are used in other business activities of Seller; provided that Seller’s failure to sell and transfer such assets or rights to Buyer would not have any adverse effect on Buyer’s ability to operate the Business;

(d) equipment, computer software, and computer hardware, except as listed on Attachment 2.1(l) ;

(e) all Accounts Receivable arising prior to the Closing Date; and

(f) Corporate records (financial records, internal correspondence, formation documents, stock records, board resolutions and minutes, and the like).

2.3 Assumed Liabilities . Buyer shall assume and agree to honor, pay and discharge when due only the following Liabilities of Seller (the “ Assumed Liabilities ”):

(a) all Liabilities of Seller under the Assumed Contracts, but only to the extent such Liabilities arise from any event, circumstance or condition occurring after the Closing Date;

(b) all Liabilities of Seller under the Registrations to be performed on or after the Closing Date, but only to the extent such Liabilities relate to any event, circumstances or conditions occurring after the Closing Date; and

(c) all other Liabilities solely to the extent such Liabilities are incurred or relate to actions or activities occurring after the Closing Date (other than the Excluded Liabilities listed in Section 2.4) arising out of or related to the Assets, including, without limitation, any product liability, product warranty, product return, charge-back, rebate or Medicaid, Medicare or other reimbursements, or similar claim, related to the Product sold after the Closing Date.

2.4 Excluded Liabilities . The Excluded Liabilities shall remain the sole responsibility of and shall be retained, paid, performed and discharged solely by Seller. The “Excluded Liabilities” shall mean every Liability of Seller other than the Assumed Liabilities, including, without limitation:

(a) all Taxes that result from or have accrued in connection with the operation of the Business prior to the Closing Date;

(b) any Liability or obligation of Seller of any nature owed to any employees, directors, former employees, agents or independent contractors, whether or not employed by Buyer after the Closing, that (A) arises out of or relates to the employment or service provider relationship between Seller and any such individual(s) (including, but not limited to, claims for compensation, discrimination, harassment, or retaliation); or (B) arises out of or relates to events or conditions occurring on or before the Closing Date (including the transactions contemplated by this Agreement);

(d) Liabilities of Seller relating to actions or activities of Seller or its Affiliates or any of their respective employees or agents relating to the Business that occurred prior to the Closing Date;

(e) Liabilities of Seller under the Assumed Contracts that were incurred or arose prior to the Closing Date;

(f) Liabilities of Seller under the Shared Contracts that relate to products or businesses of Seller other than the Product or the Business or that a

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